On 24 October, Parliament’s Portfolio Committee on Justice & Correctional Services announced that Judges John Hlophe and Nkola Motata were to be given until mid-November to place extenuating circumstances before the committee, which is considering the potential impeachment of the judges.

Then, on 30 October, the Constitutional Court handed down judgment in Ex parte Minister of Home Affairs and Others; In re Lawyers for Human Rights v Minister of Home Affairs.

Freedom Under Law’s Judith February and Chris Oxtoby say this judgment was significant, for the court clearly expressed its displeasure with the manner in which litigation had been conducted.

It ordered the Minister’s legal team was not entitled to charge any fees, and the Minister and DG pay 10% and 25%, respectively, of the legal costs of the case from their own pockets.

In their opinion piece on the Daily Maverick site, the authors say while the link between the two events might not be immediately apparent, both highlight important aspects of the current state of the rule-of-law in SA.

Delay, they note, has been the name of the game in in the Hlophe and Motata matters, so it should perhaps come as no surprise that the parliamentary part of the process is also moving slowly.

The initial incident involving Motata took place in 2007, and that involving Hlophe took place in 2008. 

Both matters have required litigation to undo the JSC’s attempts to dismiss the complaints without making findings of gross misconduct. While Parliament must still vote on their fate, February and Oxtoby say it is hard to imagine how it could be said that either of these judges now meet the standard of being fit and proper people to hold judicial office.

‘It would be extraordinary for Parliament to now find – in the face of the findings against both judges – that they should not be removed from office.’ 

They add this is an important moment for Parliament to play its part in upholding the rule of law and ensuring accountability under the Constitution.

‘It is now crucial that Parliament acts quickly and decisively to ensure that the delays and errors which have beset both matters are not further compounded.’

February and Oxtoby say these proceedings in Parliament come as part of a broader trend where civil society has been required to step into a void and hold those in public office accountable for unlawful and irregular actions.

In this context, the Constitutional Court judgment in the Minister of Home Affairs case sets an important precedent in ensuring that there are consequences for the abuse of court processes. 

The court was scathing about the ‘dreadful manner’ in which the litigation had been conducted by the Minister, departmental officials and their legal representatives, punishing them with the costs order. The authors say these are damning criticisms, and it is deeply concerning to see such poor conduct by public officials laid bare in the judgment.

‘It is, however, to be welcomed that the court has come out so strongly against this conduct.’ 

They say the judgment marks an important attempt by the highest court to reassert judicial authority to hold recalcitrant parties accountable for conducting litigation in such a manner.

‘It is to be hoped that other litigants and their lawyers will see the judgment as a salutary reminder of their responsibilities to the courts and to the justice system, and that other courts will be able to use this judgment as an authoritative basis to clamp down on abuses of the court process.’

Full opinion piece on the Daily Maverick site